BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 66 of 2014
Date of Institution : 22.5.2014
Date of decision : 30.1.2017
M/s H.D.S Emu Farm Kuttabadh through its Prop. Devender Singh son of Shri Jarnal Singh, resident of village Kuttabadh, Tehsil Ellenabad, District Sirsa.
……Complainant.
Versus.
1. The Manager, Oriental Insurance Company Limited, Branch Office at SCO 325, IInd Floor, Sector-9, Panchkula also having its Branch Office at Sirsa.
2. M/s Galaxy Agro Foods International, through its Chairman Mr. Ajay Kamboj, situated at Opp. Main Gate CMK National College, New Mandi, through its Chairman Mr. Ajay Kamboj.
3. Ajay Kamboj, Chairman of M/s Galaxy Agro Foods International Resident of Dhani 400, Post Office Jhorar Nali, Tehsil and District Sirsa.
...…Opposite parties
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SHRI S.B.LOHIA……………………….PRESIDENT
SHRI RANBIR SINGH PANGHAL ……MEMBER.
Present: Sh. Inderjit Singh, Advocate for the complainant.
Sh. J.B.L. Garg, Advocate for opposite party No.1.
Opposite party no.2 given up.
Opposite party no.3 exparte.
ORDER
In brief, complainant’s case is that complainant deals in the business of sale/purchase of eggs of emu birds and op no.2 also deals in the business of sale/purchase of emu birds and op no.3 is sole proprietor/ chairman of op no.2 firm. The complainant came in their contact and also desired for the purchase of emu birds and ops agreed for the same. The complainant purchased 25 pairs of the emu birds under the contract which were supplied by op no.2 and it was assured that all the pairs aged about 42 months will provide 20-35 eggs in a year and the average will be 25 eggs per pair. As per the contract, the requisite price of the birds was to be paid by complainant to op no.2 and the rate of per egg will be Rs.1200/- only for ten years and after lapse of 10 years, the rates will be fixed on market rate or mutual consent. At the time of contract, some other conditions were also settled in between the op no.2 and complainant. Thereafter, the insurance of said 25 pairs was got conducted from op no.1 after medical checkup of the birds vide cover note No.469443 dated 4.10.2012 for the period w.e.f. 4.10.2012 to 3.10.2013. The complainant got the loan facility from Sirsa Central Cooperative Bank Limited, Mallekan, Distt. Sirsa to purchase emu birds. Out of the 25 pairs of the birds, 5 emu birds detail of which has been given died on different dates and their post mortems were conducted on the date of death. After the death of emu birds within the period of insurance, the complainant approached op no.1 through their office branch at Sirsa as well as Panchkula for disbursement of the claim amount i.e. the sum assured as per the policy of insurance issued by op no.1 and also supplied all the relevant documents to the appointed Agent/ Surveyor of op no.1. However, the ops failed to make payment of the sum assured against each and every deceased birds though it is the legal liability of op no.1 as well as ops No.2 & 3 because they got the insurance of said emu birds from op no.1 and also assured for disbursement of the claim/compensation in case of any casualty of the birds within insurance period. The legal notice was also issued by the complainant to the ops and he is entitled to the amount of Rs.65,000/- alongwith other benefits. When the complainant approached Branch Officer namely Sh. D.P. Singh at Panchkula regarding death of emu birds on different dates, then the said officer demanded various documents i.e. claim form, copy of insurance policy, copy of post mortem report, copy of purchase bill, copy of cancellation of cheque, photographs of emu birds, original tag, evidence of neighbour, report regarding feed and medicine to the bird and the complainant accordingly sent all these documents to the said officer and also sent the copies of those documents to branch office at Sirsa but despite that the claim of the birds have not been disbursed to the complainant. It is further averred that complainant has also sent letter dated 10.7.2013 to Sh. D.P. Singh, branch officer of the company and also sent e-mails regarding his grievance to the authorized officer of the company but of no avail. It is further averred that due to death of the birds, the complainant has undergone harassment, pecuniary and non pecuniary loss as he purchased the emu birds by availing the loan facility from the bank and now death to the death of the birds, the complainant has suffered double loss i.e. loss of profit and is unable to pay installments of loan amount and on all above the op no.1 has caused unnecessary mental tension etc. The complainant is also entitled to compensation of Rs.3,00,000/- from the op no.1 as well as from ops no.2 & 3 jointly and severally. The conduct of the ops in repudiating the claim of complainant is in utter disregards to the insurance policy and op no.1 even did not bother to give any opportunity of hearing to the complainant before repudiating his claim and out rightly refused to disburse the claim without any information to the complainant and disclosure of any fault on his part. Hence, this complaint.
2. On notice, opposite party no.1 appeared and filed written statement taking certain preliminary objections. It has been submitted that op company vide letters dated 9.12.2013, 17.12.2013 and 21.1.2014 required the complainant to fulfill all the formalities relating to the different claims i.e. daily mortality record, feed record, treatment record and purchase bill and remaining birds maintained at his firm but the complainant did not respond to these letters and throughout remained silent thereon and did not provide the required details. It has been further submitted that from the bare perusal of the complaint, it is quite clear that the complainant purchased the emu birds from ops No.2 & 3 for the business purposes which falls under the commercial transaction. Moreover, the complainant purchased these birds under a contract. So it is quite clear that complainant does not fall within the definition of consumer and the subject matter of present complaint is also out of purview/ scope of the provisions of the Act. The complainant has violated the terms and conditions of Emu Birds insurance policy. As per condition No.6 of the policy, the complainant was under obligation to keep all essential records about mortality of birds, as per clause 13 of the policy, he was to give immediate information about the death of bird in writing/ telegram, but in this case, the complainant has failed to follow these terms and conditions of the insurance policy. So, the claim of complainant does not lie. Moreover, as per exclusion clause (d), no claim lies due to loss/ death due to natural mortality and non-specified or unknown disease or reasons. Moreover, the birds died due to not providing proper feed and not due to any disease. So the claim of the complainant has been repudiated by the answering op. With these averments, dismissal of complaint has been prayed for.
3. OP no.2 was given up by learned counsel for complainant as op no.2 closed office. Op no.3 did not appear despite notice and was proceeded against exparte.
4. By way of evidence, complainant has produced his affidavit Ex.C1, legal notice Ex.C2, postal receipt Ex.C3, copy of insurance cover note Ex.C4, policy schedule Ex.C5, copies of post mortem reports Ex.C6 to Ex.C10, copy of application dated 10.7.2013 Ex.C11, copy of courier receipt Ex.C12, application sent through e-mail Ex.C13, copies of courier receipts Ex.C14 to Ex.C16, copy of agreement Ex.C17, copy of bill Ex.C18, copy of acknowledgment of registration of firms Ex.C19, copy of registration of firm Ex.C20, copy of FIR Ex.C21. On the other hand, op no.1 tendered affidavit of Sh. Sushil Kumar, Senior Manager Ex.R1, copy of investigation report Ex.R2, copy of statement of Devender Singh Ex.R3, copy of insurance policy Ex.R4 and copy of policy schedule Ex.R5.
5. We have heard learned counsel for the parties and have gone through the case file carefully.
6. First of all, we would like to mention few of the material facts which are not in dispute. The complainant got insured his 25 pairs of Emu birds with the opposite party no.1 vide insurance cover note Ex.C4 for the period w.e.f. 4.10.2012 to 3.10.2013 as is evident from policy schedule Ex.C5. It is also evident from the said policy schedule Ex.C5 that the emu birds were insured for a sum of Rs.6,50,000/- against the gross premium of Rs.39,000/-, service tax Rs.4820, stamp duty of Rs.5/- i.e. for total amount of Rs.43,821/-. According to the complainant, out of pairs of 25 birds, five emu birds died. As per detail given in the complaint, one emu died on 2.3.2013, two emus died on 23.5.2013 and then one emu died on 29.5.2013 and lastly fifth emu died on 31.5.2013. The post mortem examinations of the dead emus were conducted by Veterinary Surgeon on the same day of death of emus as is evident from post mortem reports Ex.C6 to Ex.C10. According to the complainant, the claim for the death of his five emus has not been given by op no.1 despite submission of relevant documents and repeated requests made through applications. As per clause 13 regarding Claim Procedure of Emu Birds Insurance policy Ex.R4, in the event of death of bird, immediate intimation should be given to the company in writing/ telegram but complainant has failed to prove that immediate intimation in writing was given to the op no.1. The op no.1 has averred that complainant has failed to follow the above said term and condition of insurance policy and complainant has failed to controvert the said plea. In these circumstances, the complainant is not entitled to any claim from the op no.1 due to violation of terms and conditions of insurance policy. The complainant is also not entitled to any relief from ops No.2 & 3.
7. Thus, as a sequel to our above discussion, we find no merit in the present complaint and same is hereby dismissed but with no order as to costs. A copy of this order be supplied to the parties free of costs. File be consigned to the record room after due compliance.
Announced in open Forum. President,
Dated: 30.01.2017. Member. District Consumer Disputes
Redressal Forum, Sirsa.
